United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
E. MARTIN UNITED STATES DISTRICT JUDGE
matter is before the Court on a Motion for clerk to issue
default [DE 8], filed by Plaintiff James Robert Jones,
pro se, on November 20, 2018, and a Motion to
Dismiss Plaintiff's Complaint [DE 14], filed by Defendant
Northview Elementary School on December 17, 2018. Jones
responded to the motion to dismiss on December 27, 2018, and
Northview filed a reply on January 3, 2019.
Complaint, which does not name a specific cause of action,
alleges as follows: Jones was employed by “Express
Personell, ” a temp agency, to work 30 hours per week
at Northview Elementary School. Jones was assigned janitorial
work, and Northview's principal told Jones that he was
performing work normally done by two people. After five or
six weeks, during which Jones received positive feedback for
his work, a second person was hired. The second person was
given some of Jones's duties and some additional
“easier” duties. At some point after that, Jones
“lost [his] job for not doing satisfactory work.”
Jones filed this lawsuit, alleging that he was
“wrongfully  terminated” and “used
unfairly.” Northview seeks to dismiss the lawsuit for
lack of subject-matter jurisdiction and failure to state a
November 20, 2018, Jones filed a motion seeking entry of a
default judgment against Northview, arguing that Northview
failed to respond within 21 days of service of the summons
and Complaint. However, Northview timely sought an extension,
which the Court granted, giving Northview until December 17,
2018 to respond to the Complaint. See [DE 9].
Northview filed its motion to dismiss on December 17, 2018.
Jones's motion is therefore without merit, and the Court
proceeds to Northview's motion to dismiss.
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of the complaint and not the
merits of the suit. See Gibson v. City of Chicago,
910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on the motion,
the Court accepts as true the facts alleged by the plaintiff
and all reasonable inferences that can be drawn from them.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007); see also Tamayo v. Blagojevich, 526 F.3d
1074, 1082 (7th Cir. 2008). The complaint must provide
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” Fed.R.Civ.P.
8(a)(2), giving the defendant “fair notice of what the
. . . claim is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555 (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)); see also Ashcroft
v. Iqbal, 556 U.S. 662, 677-78 (2009). The complaint
must “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft, 556 U.S. at 678
(2009) (citing Twombly, 550 U.S. at 570). Because
Plaintiff is pro se, his complaint should be
“liberally construed.” Alvarado v.
Litscher, 267 F.3d 648, 651 (7th Cir. 2001). However,
the Court has “no obligation to act as counsel or
paralegal to pro se litigants.” Myles v.
United States, 416 F.3d 551, 552 (7th Cir. 2005).
argues that Jones was an at-will employee who could be fired
for any reason, and that his Complaint does not allege any
facts or causes of action that would support a claim against
Northview. Jones agrees that “this is [an] at-will work
state, ” but nonetheless alleges “wrongful
termination, ” and presents several arguments that he
says support a claim against Northview.
Indiana, if there is no definite term of employment,
“the employment is at-will, and is presumptively
terminable at any time, with or without cause.” Orr
v. Westminster Vill. N., Inc., 689 N.E.2d 712, 717 (Ind.
1997). There is an exception to this rule if “a clear
statutory expression of a right or duty is
contravened.” Id. at 718. Therefore, to
sustain a claim of “wrongful termination, ” or
any similar claim, Jones must show that Northview's
actions violated his statutory rights.
argues that he worked extra hours and skipped breaks because
he was doing the work of two people, and that he was told his
work was “fine.” Accepting Jones's
allegations as true, the fact that he was performing well and
working hard does not mean that Northview was not allowed to
fire him. Jones has not shown how the firing resulted in a
violation of his rights. For the same reason, Jones's
argument that he should have been given some kind of warning
before the firing is also insufficient to state a claim.
Northview's argument that no federal claim exists, Jones
states that his firing was discriminatory, and “federal
law [prohibits] a person to be treated [differently] than
[others] on a job [especially] a government job.”
Federal law prohibits certain kinds of discrimination, such
that based on age, disability, or race, but Jones does not
suggest discrimination on any of those grounds. Although
Jones indicates that the second person who was hired was a
woman, he states only that he was “treated
[differently]” than the second person, and does not
allege that the differential treatment was related to gender.
Therefore, Jones fails to state a claim of unlawful
response to the motion to dismiss, Jones states that he
should have been paid overtime. As an initial matter, Jones
cannot add new claims in his response. “[T]he complaint
may not be amended by the briefs in opposition to a motion to
dismiss.” Agnew v. Nat'l Collegiate Athletic
Ass'n, 683 F.3d 328, 348 (7th Cir. 2012) (citing
Thomason v. Nachtrieb, 888 F.2d 1202, 1205 (7th
Cir.1989)). Even if Jones were making a claim for unpaid
wages, the fact that he was doing work apparently allotted to
two people, or working more than the scheduled 30 hours a
week, would not necessarily entitle him to overtime. See,
e.g., 29 U.S.C.A. § 207(a)(1) (overtime under the
federal Fair Labor Standards Act applies to certain employees
“for a workweek longer than forty hours”). Jones
does not state any other facts in support of his allegation
of unpaid overtime, and therefore does not state a claim.
his response, Jones states that when “serving his
summons, ” he was “retaliated” against by
“Joe Launck, ” who allegedly told Jones that he
would not get a job at any other school in Valparaiso because
of his lawsuit, and that he would be trespassing if he tried
to go to any school in Valparaiso. This
“retaliation” allegedly occurred after
Jones was terminated; Jones has not shown that being told he
would not be re-hired, or being warned against trespassing,
violates his rights or forms the basis for a legal claim